SYED JAWAD ALI S/O ANJUM HUSSAIN (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Sp. A.T.Appeal No: ofzotS .l v>._ :.tr7::.?i:kAb Syed |arad Ali r/o Anjum Hussain Muslim, Adult, resident of House NIo. C/135, llr';rury * -t (o (r$ berick No.49, Jatt line, Petrol Pump, U :ttat (Judt Husaini Imam Barga, Lines Area., tr TDL1 Karachi APPLICANT

t Versus

The State RESPONDENT

FIR:279/ 201,5

U / 5.392/ 3s3 / 324/ u PPC r / w 7 -

4TA,1997

P.S. Ferozabad, Karachi

SPECIAL CRIMINAL APPEAI- UNDER SECTION 25 Or" ANTI-

TERRORISM ACT OE 1"997 READ WITH SECTION

410 CRIMIN AL P RO CEDURE CO URT

"/r Being aggrieved and dissatisfied r,vith impugned consolidated ]udgment dated 22.1,2.2018 passed by the Learner Judge of Anti- Terrorism Court No:X, Karachi in Special Case No:168/2018 (old Case No.1903/2016) in Crin're FIR No: 279/2015 of uls 394353/324/34PPC L rlw 7-AT A, in which the Learner juclge dict not consider the rnerits of +,{ e cases and passed the sentence to the applicant/ accused. It is spectfully prayed on behalf of above named applicant/accused that this Honorable Court may graciously be pleased to suspend the Judgment as well as set aside thc above impttgned judgrnent datecl 22.12.2018 so also acquit the applicant/accused, on consicleration of I the following facts and grouncls:-

Certified copy of Judgment is enclosed as Annexure 'A'

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IN TI{E HIGH COURT OF SINDH KARACHI

Special Criminal Anti-Terrorism Appeal No'372 of 2O18' l'res€nt:

frlt. Iustice fuloluntnud Kuritn Kltstr Agltu lvir. lvluhantna Stleent lessur

Appetlant : Syed Jawad Ali S/o Anjum Hussain through Mr. Danial Faraz Khan Ujjan, Advocate.

Respondent / State Through Mr. Muhammad Iqbal Awan, Deputy Prosecutor Cieneral, Sindh

Date of Hearing 02.o3.2020.

Date of Judgment 16.o3.2020.

IUDGMENT

MOHAMMAD KARIM KHAN AGHA, I:- Accused Syed Jarvad Ali s/o Anjum Hussain was tried by the learned ]udge, Anti-'l'e'rrorism Court No.X, Karachi in Special Cases No.168/2018, Old No.(1903/2016), arising out of Crime No.279 / 201,5 U/s.397/353/324/34 PPC r/w section 7 A'lA, 1997, rcgisterc'd .rt P.S. Ferozabad, Karachi. After trial vide judgment dated 22.12.20111 the appcllant named above was convicted as under:-

1 Convicted accused Syed Jau,ad Ali s/o Anjurn Hussain for trlletrct' u/s 392 PI'C and sc,ntencecl to undergo R.l. for " 10" t't'.rrr with iirr(' of Rs.100,000/-. ln default in payment of such fine, he shall sufft'r further R.l. for "06" months more.

2.Convicted accused Syed -lawact Ali s/o Anium Hussain for offence u/ s 7 (h) of ATA, 1997 R/w 5353 / 324 PPC and sentr'rrced to undergo R.l. for "10" years with fine of lts 100,000/-. In tlefault in payment of such fine, he shall suffer further R.l. for "06" months more,

Both the sentences were ordered to run concurrently. Tlre benefit of section 382-8 Cr.P.C. was also extendecl to the appc.)lant.

2.Being aggrieved and dissatisfied by the iudgment passecl bv leartrer.l Judge, Anti-Terrorism Court No.X, Karachi, the aforesaid appeal has bccn preferred by the appellant.

3, The brief facts of the prosecution case are that on 20.04.2015, at about 2320 hours complainant Noman Rasheed s/o Abilui Rasheetl got recortlt'r.l his statement l..J/s 154 Cr.P.C. wherein, he stated that on that dav, when he was 'l

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returning to his home along with his brother Kamran Rasheecl in Car from 1'arit1 Road after shopping at about 2230 hours when the complainant stopped his car opposite House No.M-tl4, Block-2, PECHS, Karachi (nearby his house) su,"lclenly "03" yotng boys on 02 motorcycles came over anel robbecl one Q-Mobile Phone, Lenovo mobile phone and cash Rs.7000/- from the comPlainant and his brother on gunpoint and then made their escape good. The complainant furthe.r claimeel in his statement U / s 1,54 Cr.PC that consequently, he then headeci towartls the concerned Police Station for lodging the Report about the inciclent and br" the time he reached at Jheel Park Marriage Hall, Block-2 PECHS he heard firing noise and one Police Mobile was also available there. As soon as the complainant came nearby the Police officials, he saw that the culprit, who had robbecl the Mobile phones and cash amount from him ant'l his brother, was Iving in ar.r iniured condition, who was also holding a pistol in his right lrand ancl the. san.rr. was recovered and taken into possession by one SIP Muhamrnatl Sachal, whereas the said injured accused was also hotding a plastic shopper in his left hand, wherefrom two mobile phones (which were robbecl by thc. culprits from the complainant and his brother) as well as 07 other Mobilc' phones of dif[erent companies were recovered and were taken into possession by the lblice. l'he complainant further claimed in his statement U / s 154 Cr.P.C. that the ^ accomplices of the injured/ apprehended culprit managecl to escape awav from the crime scene on their motorbike by making fire shots, whereas, tlrey hacl also lelt behind one motorbike having registration No.KCM-5463 (maker SupersLrr) on the spot. Upon inquiry, the apprehender.i/ injured accused disclosecl his nanrt' as to be Hafeez-u-ddin S/o. Qamar-u-ddin. The complainant further stated in his statement U/ s 754 Cr.P.C. that the said injurerJ accused along rvith his accomplices harl assaulted upon the poiice party as well as macle f ire shots u P()t.l them at about 2300 hours and as a result of cross-firing, he got injurer.l. rc complainant further stated that the injured accused was then shiftecl b I Iospital for his medical treatment, whereas the police officials had also secured empty shells from the place of Wardat as well as blood stained earth and somtr documents were also prepared by the Police on the spot. I-ater on, at about 025(l hours viz. 21,-04.20'15, SIP Muhammar"l Sachal incorporated the statement U/s. 154 CI.PC of the complainant into the FIR book bearing FIR No.279/2015 U /s.

392/353/324/34PPC.

4.After completion of the investigation, the charge against the accusL'r1 \^/as framed to which he pleadeti not guiltl,anci claimed trial of the case

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5.To prove its case the prosecution examined 06 prosecution witncsses alrtl exhibited numerous items and other documents and thereafter the sicle'of the prosecution was closed. The statement of the accusecl u/s 342 r'P'C was alst' recorded in which he denied all the allegations leveled against hinr ancl clainrctl false implication. He did not examine himself on oath or call anv llelt'nse witnesses in support of his defense case.

6.Learned Judge ATC No.10 at Karachi after hearing the learned couusel ior the parties and assessment of evidence available on record, vitle the impugrrer'l judgment dated 22.12.2078, convicted and sentencell the aPPellant Syecl Jawacl Ali as stated above, hence this appeal has been filed by the appellant against his conviction.

7.The facts of the case as well as evidence producecl before the trial court find an elaborate mention in the judgment dated 22.12.2018 passeci by the trial court and, therefore, the same mav not be reproduced here so as to avoicj duplication and unnecessary repetition.

8.Learned counsel for the appellant has contended that he is completelv innocent and has been falsely implicated in this case, that he has not been correctly identified, that the motor cycle recovered at the scene does not belong to him and as such this is a case of no eviderrce and as such he slrould bc acquitted of the charge and his appeal allowecl.

9.On the other hand learned DePuty Prosecutor (leneral has fully suPPorted the impugned iudgment. He has contended that the Prosecution has provecl its case against the appellant beyond a reasonable doubt as the aPPellant has beerr fully implicated in the case by his arrest and recovery of the motor bike at tht' scene of the encounter which belongs to him and as such the appeal shoultl Lx' dismissed.

10.We have heard the arguments of the learned counsel for the partios, gor.tc through the entire evitlence which has been read out by the appellant, the impugned .iudgment with their able assistance and have considered the relevant law.

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11.. In our view after our reassessment of the evidence based on the evillenct' of the PW witnesses, PW MLO, Post mortem report, IO's evidence, recovery of weapon from deceased accomplice from the scene along with ernpties antl recovery of robbed items from the deceased who was killed at the spot cluring the encounter, positive FSL and chemical reports, we are satisfieri that thl' prosecution has proved beyond a reasonable doubt that on or about 20-04-2015 between 2230 and 2300 Noman Rashrd and his brother n'ere robbed and almost irnmediately therealter on the same night one of the accuse'cl ir.rvolvcd itr tht' robbery was killed in an encounter with the Police whjlst his accomplices escaped from the scene.

72.In our view therefore the only issue before us is whether the appellant was one of the persons who took part in the aforesaicl robberv antl su trse'c1ut.t.t t encounter with the police on 20-04-2015.

13.After our reassessment of the evidence we are of the view that the prosecution has not been able to prove bevond a reasonable doubt that the appellant took part in the aforesaid robbery and subsequent encountcl witlr th(' police on 20-04-2015 for the following reasons;

(a)The appellant was not arrested on the spot anel rnaclc his Lrsc.:r PLr g()(rd and thus his case will turn on the correctness of his iclentification.

(b)Turning to the identification oI the appellant:

(i)It was a night time incident and no source'ttf light lras conre in evidence. The fire came from distance and was not clost' range as is evidenced by the cleceasetl accused who was killed by firearm since as per Post m()rtem report n() blackening was found around his wouncls which itr(licntes that the fire was not macle from close ratrge' lrut f ttrm a distance.

(i, Those police PW's wl.ro allegetlly identified the appellant were told by the lO that he was the person who committed the crime which is no identification at all and is basetl on hearsay. Even those who identified him in court gave lr() hulia or other clescription of the appellant ilt their S.l6l statements and in court identification has been tleprecatt'tl by the Supreme Court.

(iii)The PW's who were robbed by the appellant anr.l his accomplices could not recognize the appellant in c()urt as thc person who robbed them tlespite the fact that thev woul.l

have been nearer to him than any other witness as thc'r' handed over the robbed items to the robbers on the motor bikes.

(iv)The appellant was unknown to any PW's and thcl' onh' grtt a fleeiing glance of hirn yet no iclentificatiou Par'lrl(' \1'ls held for unexPlained reasons

(c)Thus, for the reasons mentioned above we have doubts that th(' ippellant has been correctly identified and as such in our view tlrc identification of the appellant cannot be safely reliecl upon

(d)Even otherwise there are other doubts in thc Prosecution cast' lirr example,

(i)There is no evidence when and from where the appellarrt was arrested and bY whom

(ii)No memo of his arrest has been exhibited (iii)No recovery was tnade from the appellant at the tirnt' oi thi' arrest.

(e)It appears that the only evidence against the appellant is that thc motor bike recovered at the scene belonged to him Howevel this has bcett denied by the appellant in his S 342 Cr'PC Statement Even if he elicl own the motorbike this is not sufficient evidence on its own to convic[ him for the offenses as charged. He could have even lent the motor bike to somt' one else even if it clid belong to him.

14.Thus, since we are of the view that the identification evidence vis a vis the corectness of the identification of the appellant cannot be safe'lv relieel u1.rot.t anr.l there is little, if any, other evidence against the appellant for the otfcnses so charged by exteniling the benefit of the doubt to the aPPellant we heretry set aside the impugned |udgment, allow the appeal, acquit the appellant of the charge who shall be released unless he is wanted in anY other custody case'

15.The appeal is disposed of in the above terms.

JU Ir ul.'f u- l

JUD 5t,